1. Agreement
These Terms and Conditions of Sale are referred to herein as the "Terms." The Terms along with any other contract document, including, without limitation, any purchase orders, any purchase order revisions, schedules, exhibits, or other documents incorporated by reference by such document shall be deemed to incorporate by reference these Terms (the "Agreement"). Unless both parties have signed a written agreement that has not expired or been terminated, regarding the sale and purchase of goods (or any incidental services related to the goods) of Radiac Abrasives, Inc. (hereinafter "Seller") that are the subject of this Agreement (the "Goods"), then this Agreement supersedes and replaces all prior agreements, representations, and understandings, whether oral or written, and contains the entire agreement between the parties regarding the purchase and sale of the Goods. If any term, condition, or other provision contained in a schedule, exhibit, or other document expressly incorporated herein by reference is in any way inconsistent with, or adds additional terms to, these Terms, these Terms shall control, except that any terms appearing on the face of a quotation or other sales document issued by Seller shall control over these Terms to the extent of any conflict. Seller's offer to sell the Goods to the purchaser of the Goods (the "Buyer") is expressly made conditioned upon Buyer's assent to the Agreement.
The first occurring expression of acceptance of this Agreement by Buyer, including Buyer's (i) written acceptance, (ii) payment of the Goods, and/or (iii) conduct that indicates Buyer's acceptance, shall constitute an acceptance of Seller's offer. A signed acceptance of this Agreement is not required and Buyer specifically waives any such requirement and any defense to the validity and enforceability of this Agreement arising from the electronic transmission of this Agreement to Buyer and Buyer's acceptance in accordance with this paragraph 1. If Buyer objects to this Agreement, Buyer's objections are deemed waived if Buyer directs the commencement of manufacture of the Goods, upon the delivery of the Goods, or Buyer subsequently accepts the Goods, without an express written modification made by Seller. Any acceptance of this Agreement is limited to and conditional upon Buyer's acceptance of the Terms. Any proposal for additional or different terms or any attempt by Buyer to vary any of the Terms, whether in Buyer's request for quotation, purchase order form, correspondence or otherwise, shall be deemed material and is hereby objected to and rejected by Seller, but any such proposal or attempted variance shall not operate as a rejection of this Agreement if Buyer accepts Seller's offer by directing the commencement of the work, delivery of the Goods or acceptance of the Goods, in which case this Agreement shall be deemed accepted by Seller without any additional or different terms or variations whatsoever. This Agreement does not constitute an acceptance of any prior request or offer by Buyer, and any reference in this Agreement to any such prior request or offer is solely to incorporate the description or specifications of the Goods in such request or offer, but only to the extent that such description or specifications are not directly in conflict with the description and specifications in this Agreement. If this Agreement is found to be an acceptance of any prior request or offer by Buyer, such acceptance shall be limited to the Terms. Any additional or different terms in such prior offer or proposal shall be deemed material and are hereby objected to and rejected by Seller. This Agreement may not be modified or amended orally, by the terms of any purchase order (including, without limitation, any terms and conditions proposed by Buyer's purchase order), or by any other documentation of Buyer; any modification or amendment of this Agreement must be set forth in a writing signed by an authorized representative of Seller.
2. Placing Orders
Any offer or quotation by Seller, even if in response to a request for quotation by Buyer, is valid for the period stated on its face (or, if no period is stated, for thirty (30) days from its date), may be withdrawn or revised by Seller at any time prior to Seller's acceptance of an order, and is covered by the terms of the Agreement. Seller reserves the right to correct any clerical, typographical, or pricing errors in any quotation, order acknowledgment, or invoice at any time prior to shipment. All orders are subject to a minimum order amount of USD $500 (or such other amount as may be stated on the face of Seller's quotation); Seller may, at its discretion, accept orders below the minimum, subject to a surcharge based on the order amount. An order for Goods from Buyer is not valid or effective unless, and until, accepted in writing by Seller from its order management department in Oswego, Illinois. If an order is rejected by Seller, any deposit received by Seller from Buyer shall be returned to Buyer.
3. Shipment
Unless otherwise stated herein in writing, the Goods, or any related items shipped with the Goods and are the subject of this Agreement, are sold EXW Seller's Dock (Incoterms 2020). If Buyer requires special packaging for the Goods, then Buyer must specify such requirements prior to Seller's acceptance of the order for Goods. Any such special packaging for the Goods shall be at Buyer's cost. Unless Buyer arranges for its own shipment, all orders are shipped Best Way, Prepaid & Add; Seller may select the carrier and routing and shall invoice Buyer for the cost of the freight.
4. Title Transfer/Risk of Loss
Unless otherwise stated herein in writing and notwithstanding the applicable Incoterms to the contrary, title and risk of loss of the Goods shall pass to Buyer at Seller's Dock.
5. Price
Unless otherwise stated on the face of Seller's quotation, all prices for the Goods herein stated, previously quoted, or agreed upon at the time of the acceptance of an order are subject to adjustment to Seller's prices in effect at time of shipment, including, without limitation, increases in raw material costs, freight (to the extent provided by Seller), or any other cost incurred by Seller in the sourcing, production, or shipment of the Goods. Buyer agrees to pay such increased prices for the Goods as though part of the Agreement at the time the order is accepted by Seller. Any price adjustment permitted under this Agreement may be applied by Seller at any time prior to shipment of the Goods, even if the order has already been accepted by Seller.
6. Payment/Credit
Unless stated otherwise in the Agreement, all payment shall be due within thirty (30) days of the date of each invoice, without discount. Any cash discount provided on the sale of the Goods will only apply to the price of the Goods and not to any other items, including without limitation, taxes, storage, freight, or other similar items. All payments not received on the due date set forth herein, shall be charged an additional one and one-half percent (1 1/2 %) interest rate per month or the maximum amount allowed under applicable law. In addition, any collection costs incurred by Seller in collecting past-due invoices, including, without limitation, reasonable attorneys' fees, shall be the responsibility of Buyer. If Buyer fails to pay Seller in accordance with the payment terms set forth herein, or if, in the opinion of Seller, Buyer's financial condition, or Buyer's ability to perform under this Agreement, is impaired or unsatisfactory, then Seller, at its option and without prejudice to its other rights and remedies, may, without further notice to Buyer: (A) suspend performance, including any pending shipments, until all indebtedness is paid in full; and/or (B) place Buyer's shipments on a cash-in-advance basis until arrangements are made for security or other assurances, satisfactory to Seller.
7. Taxes
All prices are exclusive of all present or future sales, use, excise, and value-added taxes, customs duties, tariffs, and other governmental taxes, levies, or charges of any kind imposed upon, or with respect to, the sale, purchase, delivery, storage, use, importation, or transportation of any Goods or related item covered by this Agreement, or any components or raw materials incorporated therein, including taxes upon or measured by the receipts of the sale thereof. All such amounts that Seller may be required to pay or collect under applicable law shall be invoiced to Buyer, who shall promptly pay the amount thereof in accordance with the terms of this Agreement, excluding only taxes based upon Seller's net income.
8. Delivery
All lead times and shipping dates are estimates only and will be confirmed upon Seller's receipt of Buyer's purchase order. Seller shall use commercially reasonable efforts to ship any Goods covered by this Agreement on or before the shipping date set forth in the Agreement (or as subsequently agreed to in writing between authorized personnel of the parties).
NOTWITHSTANDING THE FOREGOING, SELLER SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR COSTS (INCLUDING LIQUIDATED DAMAGES) OF BUYER RESULTING FROM ANY DELAY OR FAILURE TO MAKE DELIVERY OF ANY GOODS FOR ANY REASON, INCLUDING DUE TO ACTS OF GOD, WAR, ACTS OF TERRORISM, RIOT, CIVIL COMMOTION, SABOTAGE, GOVERNMENTAL ACTION, PANDEMIC, EMBARGO, STRIKES, LABOR DISPUTES, FLOOD, TRANSPORTATION SHORTAGES OR DELAY, MATERIAL SHORTAGES, LABOR SHORTAGES, OR OTHER CAUSES BEYOND THE REASONABLE CONTROL OF SELLER.
If the Goods are delayed through no fault of Seller (including because of the actions of Buyer), Buyer agrees to accept title to, and make payment for, any such Goods as if shipped by Seller on the date the Goods were due under this Agreement. Buyer further agrees to pay for all storage, handling and other costs related to such delay caused through no fault of Seller. All Goods shall be furnished subject to customary manufacturing and commercial variations and practices of Seller. Seller reserves the right to ship amounts less than, or greater than, the amount of Goods ordered in accordance with Seller's customary practices.
9. Cancellation/Termination/Returns
Orders for non-custom Goods may be cancelled, terminated, or returned to Seller by Buyer for a credit against future purchases, less a twenty-five percent (25%) surcharge for re-stocking. No returns will be accepted thirty (30) days after shipment of the Goods. Any orders for custom Goods may not be cancelled, terminated, or returned under any circumstances. Once Seller accepts Buyer's order for custom Goods, Buyer must accept and pay for such Goods, even if the Goods have not yet been manufactured or delivered to the Buyer.
10. Allocation
If sufficient Goods are not available for any reason, Seller may allocate Goods for its (and its affiliates) needs and among its customers. Seller will make reasonable efforts to obtain additional Goods from other sources for delivery to Buyer, provided Buyer agrees to pay all additional costs associated with such Goods. Allocation of Goods pursuant to this Section shall completely satisfy and discharge Seller's supply obligations.
11. Warranty/Disclaimers
Seller warrants that the Goods shall be free from manufacturing defects for a period ending on the earlier of: (a) one (1) year from the date of installation of the Goods; or (b) six (6) months from the date of shipment of the Goods. Seller's sole obligation with respect to a breach of this warranty shall be to repair or replace the Goods, and if the foregoing are not commercially feasible, return the price paid for the Goods less any depreciation. The warranty does not apply to: (i) reasonable wear and tear of the Goods; (ii) normal corrosion or degradation of the Goods; (iii) use of Goods with other products or components to the extent prohibited by, or inconsistent with, Seller's Goods documentation or Technical Advice (as defined below); (iv) defects caused by persons other than Seller, including improper installation of the Goods; or (v) misuse, abuse, vandalism, neglect, or force majeure events. SELLER MAKES NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OF ANY THIRD-PARTY, OR WARRANTIES AS TO QUALITY OR CORRESPONDENCE WITH PRIOR DESCRIPTION OR SAMPLE, AND BUYER ASSUMES ALL RISK AND LIABILITY WHATSOEVER RESULTING FROM THE USE OF SUCH GOODS, WHETHER ALONE OR IN COMBINATION WITH OTHER SERVICES. Seller's sole responsibility and obligation under this warranty shall become effective only upon full and final payment for the Goods furnished by Seller (late payment shall not extend the warranty period).
12. Technical Advice Disclaimer
If Seller furnishes technical or other information or advice to Buyer either through its website, in-person, or other method, whether at Buyer's request or otherwise, and whether or not for payment (the "Technical Advice"), such Technical Advice is not a substitute for the sound professional judgement (including, without limitation, engineering advice) of the user, and Seller cannot anticipate all conditions or variables for any of Buyer's uses of the Goods. AS A RESULT, SELLER DISCLAIMS ANY LIABILITY RELATED TO THE TECHNICAL ADVICE AND BUYER ASSUMES ALL RISKS RELATED TO SUCH TECHNICAL ADVICE. Buyer should always verify any Technical Advice with a qualified professional. Any reference to other third-party products in connection with the Technical Advice is neither a recommendation, nor an endorsement of any such third-party products and does not imply that such third-party products are compatible with the Goods.
13. Indemnity
Buyer shall defend, indemnify, and hold harmless Seller, its affiliates, and their respective officers, directors, employees, and agents (collectively, the "Seller Indemnitees") from and against any and all actual or alleged liabilities, losses, damages, claims, demands, suits, judgments, fines, penalties, costs, and expenses (including, without limitation, reasonable attorneys' fees and costs of defense) resulting from or arising out of: (i) the handling, storage, installation, use, misuse, resale, or disposal of the Goods by Buyer or any of its employees, agents, contractors, or customers; (ii) any modification or alteration of the Goods by any person other than Seller; (iii) the use of the Goods in combination with any other product, component, or material; (iv) Seller's compliance with any designs, specifications, or instructions furnished by Buyer; (v) Buyer's breach of this Agreement or violation of any applicable Law; or (vi) any negligent act or omission or willful misconduct of Buyer, in each case except to the extent any such liability is finally determined by a court of competent jurisdiction to have been caused solely by the gross negligence or willful misconduct of Seller. Buyer's obligations under this Section 13 shall not be subject to, or limited by, the Limitation of Liability set forth in this Agreement and shall survive any termination or expiration of this Agreement. The Goods shall be deemed to be in Buyer's possession and control upon transfer of risk of loss.
14. Limitation of Liability
IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE LOSS OR DAMAGE, OR CONSEQUENTIAL LOSS, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF BUSINESS AND BUSINESS INTERRUPTION, OR ANTICIPATED PROFIT, REGARDLESS OF WHETHER SUCH DAMAGES ARISE FROM A TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHER THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE OR IF SUCH LOSS OR DAMAGE COULD HAVE BEEN REASONABLY FORESEEN. SELLER'S TOTAL LIABILITY AND BUYER'S SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE OF ACTION ASSOCIATED WITH THIS AGREEMENT, WHETHER BASED IN TORT, CONTRACT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY IS EXPRESSLY LIMITED TO THE LOWER OF EITHER: (A) THE REPAIR OR REPLACEMENT OF THE GOODS THAT DO NOT MEET THE WARRANTY HEREIN WITHOUT COST TO BUYER, OR (B) THE PURCHASE PRICE ACTUALLY PAID FOR THE GOODS THAT GAVE RISE TO THE LIABILITY.
15. Compliance with Laws
Buyer agrees to comply with all applicable laws, rules, and regulations ("Laws"), from whatever authority they may emanate, provided they are not in conflict with U.S. Law. Moreover, Buyer agrees to comply with all applicable U.S. Laws, including but not limited to those Laws administered or enforced by the following U.S. departments and agencies: EPA, OSHA, Commerce Department, State Department and Treasury Department. Furthermore, Buyer shall comply with all applicable export control and trade embargo Laws (including but not limited to the U.S. Export Administration Regulations, the U.S. International Traffic in Arms Regulations, the regulations administered by the Department of the Treasury's Office of Foreign Assets Control and the U.S. Foreign Trade Statistics Regulations), and shall not resell, export, re-export, distribute, transfer or dispose of the Goods, directly or indirectly, without first obtaining all necessary written consents, permits, authorizations, and licenses and completing such formalities as may be required by any such Laws. Failure by Buyer to comply with such Laws shall constitute a material breach of this Agreement. Buyer agrees to impose this same compliance requirement in its contracts with third parties pertaining to the Goods. In the event this Agreement, or any material obligation or action herein imposed upon either party hereto, shall at any time conflict with any such Law, such that a material change to the terms of this Agreement would be required to restore compliance with Law, then Seller shall have the right to terminate this Agreement by notice to Buyer. Such termination shall not relieve Buyer of its obligation to pay in full any unpaid balances due hereunder; Seller shall be relieved of any obligation to make additional deliveries hereunder as of the date of such termination.
16. Governing Law/Waiver of Jury Trial/Consent to Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois (regardless of the laws that might otherwise govern under applicable Illinois conflicts of laws principles) as to all matters, including matters of validity, construction, effect, performance, and remedies. Buyer irrevocably consents to the exclusive jurisdiction of the courts of the State of Illinois and of any federal courts located in Kendall County, Illinois in connection with any action, suit or other proceeding arising out of or relating to this Agreement or any action taken or omitted hereunder and waives any claim of forum non conveniens and any objections as to laying of venue; provided, however, that nothing herein shall limit Seller's right to bring any action, suit, or proceeding (including any action for the collection of amounts due) against Buyer in any other court of competent jurisdiction. Buyer further waives personal service of any summons, complaint or other process and agrees that service thereof may be made by certified or registered mail directed to Buyer at Buyer's address for purposes of notices hereunder. Each party hereby waives its right to a trial by jury of any claim arising under or in connection with this Agreement.
17. Assignment
This Agreement shall not be assigned by Buyer, in whole or in part, without the prior written consent of Seller, which consent may be withheld in Seller's sole discretion, and any purported assignment by Buyer without such consent shall be null and void. Seller may assign, delegate, or otherwise transfer this Agreement, or any of its rights or obligations hereunder, in whole or in part, without the consent of Buyer, including, without limitation, to any affiliate of Seller, to its successor-in-interest by operation of law, or to the transferee of all or substantially all of the assets of Seller to which this Agreement relates. In addition, Seller may, without the consent of Buyer, assign its rights to collect and receive payment of amounts due hereunder in connection with a factoring, securitization, or other similar arrangement regarding some or all of Seller's receivables.
18. Relationship of Parties
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
19. Waiver
Except as expressly provided in this Agreement, no amendment or waiver of this Agreement shall be binding upon Seller unless executed in writing by an authorized representative of Seller. No failure or delay by Seller in exercising any right, power, remedy, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, remedy, or privilege. No waiver of any provision of this Agreement shall constitute a waiver of any other provision nor shall any waiver of any provision of this Agreement constitute a continuing waiver unless otherwise expressly provided.
20. Severability
Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
21. Notices
All notices required hereunder shall be given by (i) telephone (confirmed promptly in writing) or shall be in writing and personally delivered, (ii) sent by facsimile transmission (during business hours) if the sender on the same day sends a confirming copy of such notice by reputable overnight delivery services (charges prepaid), (iii) reputable overnight delivery service (charges prepaid) or (iv) certified United States mail, postage prepaid return receipt requested, and addressed to the respective parties at their addresses set forth in the Agreement, or at such other address as any party shall hereafter inform the other party by written notice given as aforesaid. All written notices so given shall be deemed effective upon receipt.
22. Construction of Agreement/Headings
No rule of construction requiring interpretation against the drafting party hereof shall apply in the interpretation of this Agreement. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
23. Force Majeure
Seller shall not be liable for any delay or failure in performance caused by events beyond its reasonable control, including, without limitation, acts of God, war, acts of terrorism, riot, civil commotion, sabotage, governmental action, pandemic, embargo, strikes, labor disputes, flood, fire, transportation shortages or delays, material shortages, or labor shortages (each, a "Force Majeure Event"). If any governmental action, including, without limitation, the imposition of, or change in, any tariff, duty, tax, quota, sanction, embargo, or other law, regulation, or order, increases Seller's cost of sourcing, producing, or delivering the Goods or otherwise economically impacts Seller's performance under this Agreement, Seller may, upon notice to Buyer, adjust the price of the Goods to account for the economic impact of such governmental action, including with respect to orders accepted but not yet shipped. If any other Force Majeure Event renders Seller unable to perform its obligations under this Agreement, Seller's performance shall be excused for the duration of the Force Majeure Event. No Force Majeure Event shall excuse or delay Buyer's obligation to pay any amounts due under this Agreement. If a Force Majeure Event continues for more than ninety (90) days, Seller may terminate this Agreement upon written notice to Buyer without liability, except that Buyer shall remain obligated to pay for all Goods delivered prior to termination.
24. Costs of Enforcement
In any action, proceeding, or other effort undertaken by Seller to enforce this Agreement or to recover any amounts due, or Goods deliverable, under this Agreement, Seller shall be entitled to recover from Buyer all costs and expenses incurred in connection therewith, including, without limitation, reasonable attorneys' fees, court costs, and collection costs.
Revision Date: 07/21/26